Day on Torts

August 8, 2006

Playing the Game with Statistics – and Playing it Wrong

Author of a recent article published in Medicine, Health Care and Philosophy have taken a hard look at the 1986 article in the New England Journal of Medicine by Karin Nelson and Jonas Ellenberg that led the medical community to sing in chorus that lack of oxygen was rarely a cause of cerebral palsey.

The new article finds that the central argument of the 1986 article relies on "straightforwardly fallacious statistical reasoning." The author’s concern is that the 1986 article improperly influences "how carefully fetuses are monitored during labor and delivery, expert testimony in malpractice cases, and public policy decisions."

(Remember my recent post on the birth-related injuries prevented by Seaton hospitals after they instituted various measures to provide more uniform care to expectant mothers? If lack of oxygen is rarely a cause of cerebral palsey why did those (and other) injuries decrease by almost 90% when new procedures were adopted?)

August 8, 2006

Federal Rules of Evidence

by The Law Offices of John Day, P.C.

Have you ever been struggling with an evidence issue and wanted to avoid standing up to grab a copy o fthe Federal Rules of Evidence?

Here is a copy.

And here is a copy of the Tennesse rules.

August 7, 2006

When Can A Guardian’s Lawyer Be Held Liable to the Gaurdian’s Ward?

by The Law Offices of John Day, P.C.

In Pederson v. Barnes the Alaska Supreme Court was faced with the issue of the circumstances under which a guardian’s lawyer is liable to the ward for the guardian’s wrongdoing.

Aiken became Barnes’ guardian after Barnes’ parents died. (Barnes was a minor at that the time of their death.) Pederson represented Aiken in the proceedings to become Barnes guardian. In about two years the $111,000 estate was almost entirely dissipated.

Barnes sued Aiken and Pederson and another lawyer working with Pederson. The lawyers moved for summary judgment, arguing that they did not have any actual knowledge of wrongdoing by Aiken. The motion was denied, and the jury returned a verdict against Pederson for compensatory and punitive damages.

August 5, 2006

Ford Recall Extending Recall Concerning Cruise Control

by The Law Offices of John Day, P.C.

Ford Motor Company has recalled 6,700,000 vehicles that have faulty cruise control systems that can cause the vehicle to catch fire.

Ford now agrees that "brake fluid might leak from the switch that deactivated the cruise control once the driver stepped on the brake. That fluid can drip onto the cruise control’s electrical component, cause corrosion and ignite a fire. " Read more here.

This site will allow you to determine if your vehicle has been recalled simply by plugging in your vehicle identification number (VIN). If your vehicle has already burned up your VIN number is on your vehicle registration. If that burned up too your dealer or the governmental entity that licensed the vehicle can give you the number.

August 4, 2006

Depositions and the “Usual Stipulations”

by The Law Offices of John Day, P.C.

Here is a great post – collecting other great posts – about the meaning of the "usual stipulations" in a deposition.

Thanks Evan.

August 4, 2006

Failure to Appeal Cases

by The Law Offices of John Day, P.C.

When a lawyer is sued for negligence in conjunction with the appellate process who decides whether or not the appeal would have been successful, judge or jury?

The judge makes the decision, according to the Illinois Supreme Court. The Court said that "the issue of proximate cause in an appellate legal malpractice action is inherently a question of law for the court and not a question of fact for the jury."

The case is Governmental Insurance Exchange v. Judge, Docket No. 100668 (Ill. S.Ct. May 18, 2006). Read it here.

August 3, 2006

What is Going On Here?

by The Law Offices of John Day, P.C.

A decision released yesterday by the Court of Appeals confuses me greatly. Defendant 1 blamed Nonparty in an answer. Plaintiff sued Nonparty, who then became Defendant 2. Defendant 2 moved to dismiss, saying inter alia that the complaint against it was barred by the statute of repose. Then, according to the opinion, Defendant 2 said that "argued that Tennessee’s comparative fault joinder statute, which would operate to toll the three-year statute of repose, was inapplicable in the current litigation."

Well, I sure hope that Defendant 2’s lawyers did not say that because that is not the law. In fact, it is 180 degrees wrong.

T.C.A. Sec. 20-1-119 has a dangerous subsection and this is as good of time to talk about it as any. Subsection (b) of the statute says as follows: "A cause of action brought within ninety (90) days pursuant to subsection (a) shall not be barred by any statute of limitations. This section shall not extend any applicable statute of repose, nor shall this section permit the plaintiff to maintain an action against a person when such an action is barred by an applicable statute of repose." (Emphasis added).

August 3, 2006

California Jury Finds for Merck

by The Law Offices of John Day, P.C.

The jury in the first Vioxx trial in California has ruled in favor of Merck. Read more here.

August 2, 2006

Hospitals Reduce Birth Injuries

by The Law Offices of John Day, P.C.

Efforts to improve teamwork and communication have substantially reduced births resulting in traumatic injury .

Many of the Seaton hospitals have worked with the Institute for Healthcare Improvement to reduce preventable childbirth injuries by " improving communications, standardizing procedures and reducing risky methods that speed deliveries, including forceps use, vacuum deliveries and medication to induce labor," according to an article in the American-Statesman.

The paper reports that overall the actions have "reduced traumatic birth injuries from 3.2 per 1,000 in 2004 (less than half the national average) to 0.3 injuries per 1,000."

August 2, 2006

First California Vioxx Trial Near Conclusion

by The Law Offices of John Day, P.C.

The first of several thousand Vioxx cases in California is nearly complete. I will let you know when the verdict comes in.